Attached files
| file | filename |
|---|---|
| EX-10.4 - FLUOROPHARMA MEDICAL, INC. | ex10-4.htm |
| EX-10.5 - FLUOROPHARMA MEDICAL, INC. | ex10-5.htm |
| EX-10.3 - FLUOROPHARMA MEDICAL, INC. | ex10-3.htm |
| EX-10.1 - FLUOROPHARMA MEDICAL, INC. | ex10-1.htm |
| EX-4.5 - FLUOROPHARMA MEDICAL, INC. | ex4-5.htm |
| EX-4.4 - FLUOROPHARMA MEDICAL, INC. | ex4-4.htm |
| 8-K - FORM 8-K - FLUOROPHARMA MEDICAL, INC. | fpmi8k_jan242017.htm |
Exhibit 4.1
THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE BORROWER.
Principal Amount:
$_____ Issue
Date: February __, 2017
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
FOR
VALUE RECEIVED, FLUOROPHARMA
MEDICAL, INC., a Nevada corporation (hereinafter called
“Borrower”),
hereby promises to pay to the order of __________________ (the
“Holder”), with
an address at _________, without demand, the sum of
________________ Dollars ($_____), with interest accruing
at twelve percent (12%) thereon, on February __, 2018 (the
“Maturity
Date”), if not sooner voluntarily converted or
exchanged as provided herein.
This
senior secured convertible promissory note (this
“Note”) has been
entered into pursuant to the terms of a note purchase agreement
(the “Purchase
Agreement”) dated as of February __, 2017 by and among
the Borrower, the Holder and certain other holders of convertible
promissory notes (the “Other
Notes”), for an aggregate principal amount of up to
$1,000,000. This Note and the Other Notes are sometimes referred to
herein as the “Notes.” Unless otherwise
separately defined herein, each capitalized term used in this Note
shall have the same meaning as set forth in the Purchase Agreement.
The following terms shall apply to this Note:
ARTICLE I
AUTOMATIC
EXCHANGE; INTEREST; CONVERSION; CERTAIN ADJUSTMENTS
1.1
Interest Payments.
Beginning on the issuance date of this Note, the outstanding
principal balance of this Note shall bear interest, in arrears, at
a rate per annum equal to twelve percent (12%), payable upon the
earlier of (i) exchange or voluntary conversion of this Note in
accordance with the terms hereof and (ii) the Maturity Date.
Interest shall be computed on the basis of a 360-day year of twelve
(12) 30-day months and shall accrue commencing on the date of this
Note. Furthermore, upon the occurrence of an Event of Default (as
defined in Article II hereof), then to the extent permitted by law,
the Borrower will pay interest to the Holder on the outstanding
principal balance of this Note from the date of the Event of
Default until such Event of Default is cured at the rate of the
lesser of sixteen percent (16%) and the maximum applicable legal
rate per annum.
1.2
Pari Passu. All
payments made on this Note and the Other Notes and except as
otherwise set forth herein all actions taken by the Borrower with
respect to this Note and the Other Notes, shall be made and taken
pari passu with respect to
this Note and the Other Notes. The Notes may be prepaid in whole or
in part at any time without premium or penalty.
1.3
Voluntary Conversion;
Conversion Price. The Holder shall have the right, at its
option at any time after or simultaneous with a subsequent
financing, to convert the principal amount of this Note plus any
accrued interest into such number of fully paid and nonassessable
whole shares of Common Stock as is obtained by dividing (i)
Outstanding Balance to be converted multiplied by 1.25, by (ii) the
per share security price of the securities sold in the Subsequent
Financing, subject to adjustment as set forth in Section 1.5 below
(such price, or such price as last adjusted, being referred to
herein as the “Conversion
Price”). Holders shall effect conversions by providing
the Borrower with written notice of the details of such voluntary
conversion, which may be provided by email (“Notice of Conversion”). The
Borrower shall instruct its transfer agent to issue the Conversion
Shares no later than five (5) business days following receipt of
the Notice of Conversion. Notwithstanding anything contained in
this Section 1.4 to the contrary,
any voluntary conversions made by the Holder under this Note shall
not in any way affect the rights of the Holder to the Additional
Warrant.
-1-
1.4
Certain
Adjustments.
(a)
Adjustments for Stock
Splits, Combinations, Certain Dividends and Distributions.
If the Borrower shall, at any time or from time to time after the
date hereof, effect a split of the outstanding Common Stock (or any
other subdivision of its shares of Common Stock into a larger
number of shares of Common Stock), combine the outstanding shares
of Common Stock into a smaller number of shares of Common Stock, or
make or issue or set a record date for the determination of holders
of Common Stock entitled to receive a dividend or other
distribution payable in shares of Common Stock, then, in each event
(i) the number of shares of Common Stock for which this Note shall
be convertible immediately after the occurrence of any such event
shall be adjusted to equal the number of shares of Common Stock
that a record holder of the same number of shares of Common Stock
for which this Note shall be convertible immediately prior to the
occurrence of such event would own or be entitled to receive after
the happening of such event, and (ii) the Conversion Price then in
effect shall be adjusted to equal (A) the Conversion Price then in
effect multiplied by the number of shares of Common Stock for which
this Note shall be convertible immediately prior to the adjustment
divided by (B) the number of shares of Common Stock for which this
Note shall be convertible immediately after such
adjustment.
(b)
Adjustment for Other
Dividends and Distributions. If the Borrower shall, at any
time or from time to time after the date hereof, make or issue or
set a record date for the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in (i)
cash, (ii) any evidences of indebtedness, or any other securities
of the Borrower or any property of any nature whatsoever, other
than, in each case, shares of Common Stock; or (iii) any warrants
or other rights to subscribe for or purchase any evidences of
indebtedness, or any other securities of the Borrower or any
property of any nature whatsoever, other than, in each case, shares
of Common Stock, then, and in each event, (A) the number of shares
of Common Stock for which this Note shall be convertible shall be
adjusted to equal the product of the number of shares of Common
Stock for which this Note shall be convertible immediately prior to
such adjustment multiplied by a fraction (1) the numerator of which
shall be the last closing bid price per share of the Common Stock
at the date of taking such record and (2) the denominator of which
shall be such last closing bid price per share of the Common Stock
minus the amount allocable to one share of Common Stock of any such
cash so distributable and of the fair value (as determined in good
faith by the Board) of any and all such evidences of indebtedness,
shares of stock, other securities or property or warrants or other
subscription or purchase rights so distributable, and (B) the
Conversion Price then in effect shall be adjusted to equal (1) the
Conversion Price then in effect multiplied by the number of shares
of Common Stock for which this Note shall be convertible
immediately prior to the adjustment divided by (2) the number of
shares of Common Stock for which this Note shall be convertible
immediately after such adjustment. A reclassification of the Common
Stock (other than a change in par value, or from par value to no
par value or from no par value to par value) into shares of Common
Stock and shares of any other class of stock shall be deemed a
distribution by the Borrower to the holders of its Common Stock of
such shares of such other class of stock within the meaning of this
Section 1.5(b) and, if the outstanding shares of Common Stock shall
be changed into a larger or smaller number of shares of Common
Stock as a part of such reclassification, such change shall be
deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of Section
1.5(a).
(c)
Adjustments for
Reclassification, Exchange or Substitution. If the Common
Stock for which this Note shall be convertible at any time or from
time to time after the date hereof shall be changed to the same or
different number of shares of any class or classes of stock,
whether by reclassification, exchange, substitution or otherwise
(other than by way of a stock split or combination of shares or
stock dividends provided for in Section 1.5(a), Section 1.5(b), or
a reorganization, merger, consolidation, or sale of assets provided
for in Section 1.5(d)), then, and in each event, an appropriate
revision to the Conversion Price shall be made and provisions shall
be made (by adjustments of the Conversion Price or otherwise) so
that, upon any subsequent conversion of this Note, the Holder shall
have the right to receive, in lieu of Conversion Shares, the kind
and amount of shares of stock and other securities receivable upon
reclassification, exchange, substitution or other change, by
holders of the number of shares of Common Stock for which this Note
was convertible immediately prior to such reclassification,
exchange, substitution or other change, all subject to further
adjustment as provided herein.
-2-
(d)
Adjustments for
Reorganization, Merger, Consolidation or Sales of Assets. If
at any time or from time to time after the date hereof there shall
be a capital reorganization of the Borrower (other than by way of a
stock split or combination of shares or stock dividends or
distributions provided for in Section 1.5(a), and Section 1.5(b),
or a reclassification, exchange or substitution of shares provided
for in Section 1.5(c)), or a merger or consolidation of the
Borrower with or into another Borrower where the holders of the
Borrower’s outstanding voting securities prior to such merger
or consolidation do not own over 50% of the outstanding voting
securities of the merged or consolidated entity, immediately after
such merger or consolidation, or the sale of all or substantially
all of the Borrower’s properties or assets to any other
person (an “Organic
Change”), then as a part of such Organic Change an
appropriate revision to the Conversion Price shall be made if
necessary and provision shall be made if necessary (by adjustments
of the Conversion Price or otherwise) so that, upon any subsequent
conversion of this Note, the Holder shall have the right to
receive, in lieu of Conversion Shares, the kind and amount of
shares of stock and other securities or property of the Borrower or
any successor Borrower resulting from the Organic Change. In any
such case, appropriate adjustment shall be made in the application
of the provisions of this Section 1.5(d) with respect to the rights
of the Holder after the Organic Change to the end that the
provisions of this Section 1.5(d) (including any adjustment in the
Conversion Price then in effect and the number of shares of stock
or other securities deliverable upon conversion of this Note) shall
be applied after that event in as nearly an equivalent manner as
may be practicable.
(e)
Adjustments for Issuance
of Additional Shares of Common Stock. In the event the
Borrower, shall, at any time, from time to time, issue or sell any
additional shares of Common Stock (otherwise than as provided in
the foregoing subsections 1.5(a) through (d) or pursuant to Common
Stock Equivalents (hereafter defined) granted or issued prior to
the date hereof) (“Additional
Shares of Common Stock”), other than Excluded Stock
(as defined below), at a price per share less than the Conversion
Price or without consideration, then the Conversion Price upon each
such issuance shall be reduced to a price equal to the
consideration per share paid for such Additional Shares of Common
Stock.
(f)
Issuance of Common Stock
Equivalents. The provisions of this Section 1.5(f) shall
apply if (a) the Borrower, at any time after the date hereof, shall
issue any securities convertible into or exchangeable for, directly
or indirectly, Common Stock (“Convertible Securities”), other
than Excluded Stock, or (b) any rights or warrants or options to
purchase any such Common Stock or Convertible Securities
(collectively, the “Common
Stock Equivalents”), other than Excluded Stock, shall
be issued or sold. If the price per share for which Additional
Shares of Common Stock may be issuable pursuant to any such Common
Stock Equivalent shall be less than Conversion Price, or if, after
any such issuance of Common Stock Equivalents, the price per share
for which Additional Shares of Common Stock may be issuable
thereafter is amended or adjusted, and such price as so amended
shall be less than Conversion Price at the time of such amendment
or adjustment, then the applicable Conversion Price upon each such
issuance or amendment shall be adjusted as provided in Section
1.5(e). No adjustment shall be made to the Conversion Price upon
the issuance of Common Stock pursuant to the exercise, conversion
or exchange of any Convertible Security or Common Stock Equivalent
where an adjustment to the Conversion Price was made as a result of
the issuance or purchase of any Convertible Security or Common
Stock Equivalent.
(g)
Excluded Stock.
Anything herein to the contrary notwithstanding, the Borrower shall
not be required to make any adjustment to the Conversion Price in
connection with any issuance of Excluded Stock. For purposes
hereof, “Excluded
Stock” means Common Stock or other securities of the
Borrower issued or to be issued (i) pursuant to the conversion,
exercise or exchange of securities outstanding on the date hereof,
(ii) pursuant to the exercise or conversion of any equity
securities at an exercise or conversion price equal to or greater
than the Conversion Price, (iii) in accordance with the
Borrower’s stock option plan or stock purchase plan, or
otherwise issued to the Borrower’s employees, consultants or
directors in transactions not primarily for equity financing
purposes and approved by a majority of the members of the
Compensation Committee of the Borrower or the Board of Directors,
(iv) securities issued in connection with bona fide strategic
license agreements or other partnering arrangements so long as such
issuances are not for the primary purpose of raising capital, (v)
except as otherwise provided herein, and following any applicable
adjustment in the Conversion Price, upon the actual issuance of
Common Stock or securities convertible into Common Stock at the
time of exercise of any rights, options or warrants to purchase
Common Stock or any securities convertible into Common Stock, as
appropriate, or upon conversion or exchange of securities
convertible into Common Stock, (vi) to the extent provided for in
the Purchase Agreement or herein, any shares of Common Stock issued
as interest or after the date hereof pursuant to the terms therein
or herein, or (vii) any non-convertible debt offering arranged by
the Borrower, its advisors or bankers.
-3-
(h)
Calculations. All
calculations under this Section 1.5 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 1.5, the number of shares of Common Stock
deemed to be issued and outstanding as of a given date shall be the
sum of the number of shares of Common Stock (excluding treasury
shares, if any) issued and outstanding.
(i)
Notice to
Holder.
(i)
Adjustment to Conversion
Price. Whenever the Conversion Price is adjusted pursuant to
any provision of this Section 1.5, the Borrower shall promptly
email to the Holder a notice setting forth the Conversion Price
after such adjustment and any resulting adjustment to the number of
Conversion Shares and setting forth a brief statement of the facts
requiring such adjustment.
(ii)
Notice to Allow Exercise
by Holder. If (A) the Borrower shall declare a dividend (or
any other distribution in whatever form) on the Common Stock, (B)
the Borrower shall declare a special nonrecurring cash dividend on
or a redemption of the Common Stock, (C) the Borrower shall
authorize the granting to all holders of the Common Stock rights or
warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders
of the Borrower shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger
to which the Borrower is a party, any sale or transfer of all or
substantially all of the assets of the Borrower, or any compulsory
share exchange whereby the Common Stock is converted into other
securities, cash or property, or (E) the Borrower shall authorize
the voluntary or involuntary dissolution, liquidation or winding up
of the affairs of the Borrower, then, in each case, the Borrower
shall cause to be mailed to the Holder at its last address as it
shall appear upon the Note Register of the Borrower, at least 20
calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not
to be taken, the date as of which the holders of the Common Stock
of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the
Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided that the failure to mail
such notice or any defect therein or in the mailing thereof shall
not affect the validity of the corporate action required to be
specified in such notice. To the extent that any notice provided
hereunder constitutes, or contains, material, non-public
information regarding the Borrower or any of the Subsidiaries, the
Borrower shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to convert this Note during the period commencing on the
date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth
herein.
1.5
Secured Loan. The
Notes shall be secured by all of the assets of the Borrower
pursuant to a Security Agreement executed by the Borrower and the
Holders dated as of the date hereof.
1.6
Miscellaneous.
Principal on this Note and other payments in connection with this
Note shall be payable at the Holder’s offices as designated
above in lawful money of the United States of America in
immediately available funds without set-off, deduction or
counterclaim. Upon assignment of the interest of Holder in this
Note, Borrower shall instead make its payment pursuant to the
assignee’s instructions upon receipt of written notice
thereof.
-4-
ARTICLE II
EVENTS
OF DEFAULT
The
occurrence of any of the following events of default
(“Event of
Default”) shall, subject to any cure periods set forth
below, at the option of the Holder hereof, make all sums of
principal then remaining unpaid hereon and all other amounts
payable hereunder immediately due and payable, upon demand, without
presentment or grace period, all of which hereby are expressly
waived, except as set forth below:
2.1
Failure to Pay
Principal. The Borrower fails to pay any installment of
principal under this Note within ten (10) business days after such
amounts are due.
2.2
Breach of Covenant.
The Borrower breaches any material covenant or other material term
of the Purchase Agreement, Transaction Documents or this Note,
except for a breach of payment, in any material respect and such
breach, if subject to cure, continues for a period of twenty (20)
days after written notice to the Borrower from the
Holder.
2.3
Breach of Representations
and Warranties. The Borrower is advised by written notice
from the Holder that a material representation or warranty of the
Borrower made herein or in the Purchase Agreement was false or
misleading in any material respect as of the date made and the
Closing Date.
2.4
Liquidation. Any
dissolution, liquidation or winding up by Borrower or a Subsidiary
of a substantial portion of their business.
2.5
Cessation of
Operations. Any cessation of operations by Borrower or a
Subsidiary.
2.6
Maintenance of
Assets. The failure by Borrower or any Subsidiary to
maintain any material intellectual property rights, personal, real
property, equipment, leases or other assets which are necessary to
conduct its business (whether now or in the future) and such breach
is not cured with thirty (30) days after written notice to the
Borrower from the Holder.
2.7
Judgments. Any
money judgment, writ or similar final process shall be entered or
made in a non-appealable adjudication against Borrower or any
Subsidiary or any of its property or other assets for more than
$250,000 in excess of the Borrower’s insurance coverage,
unless stayed, vacated or satisfied within 60 days.
2.8
Bankruptcy.
(a)
Borrower files any petition or action for relief under any
bankruptcy, reorganization, insolvency or moratorium law or any
other law for the relief of, or relating to, debtors, now or
hereafter in effect, or makes any assignment for the benefit of
creditors or takes any corporate action in furtherance of any of
the foregoing; and
(b) An
involuntary petition is filed against Borrower under any bankruptcy
statute now or hereafter in effect, and such petition is not
dismissed or discharged within 60 days, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar
official) is appointed to take possession, custody or control of
any property of Borrower.
-5-
ARTICLE III
MISCELLANEOUS
3.1
Holder’s Conversion
Limitations. The Borrower shall not effect any conversion of
this Note, and a Holder shall not have the right to convert any
portion of this Note, to the extent that after giving effect to
such issuance after conversion as set forth on the applicable
Notice of Conversion, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with
the Holder or any of the Holder’s Affiliates), would
beneficially own in excess of the Beneficial Ownership Limitation
(as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder
and its Affiliates shall include the number of shares of Common
Stock issuable upon conversion of this Note with respect to which
such determination is being made, but shall exclude the number of
shares of Common Stock which would be issuable upon (i) conversion
of the remaining, nonconverted portion of this Note beneficially
owned by the Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or nonconverted portion of any other
securities of the Borrower (including, without limitation, any
other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein
beneficially owned by the Holder or any of its Affiliates. Except
as set forth in the preceding sentence, for purposes of this
Section 3.1, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, it being acknowledged by the
Holder that the Borrower is not representing to the Holder that
such calculation is in compliance with Section 13(d) of the
Exchange Act and the Holder is solely responsible for any schedules
required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 3.1 applies, the
determination of whether this Note is convertible (in relation to
other securities owned by the Holder together with any Affiliates)
and of which portion of this Note is convertible shall be in the
sole discretion of the Holder, and the submission of a Notice of
Conversion shall be deemed to be the Holder’s determination
of whether this Note is convertible (in relation to other
securities owned by the Holder together with any Affiliates) and of
which portion of this Note is convertible, in each case subject to
the Beneficial Ownership Limitation, and the Borrower shall have no
obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated
above shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder.
For purposes of this Section 3.1, in determining the number of
outstanding shares of Common Stock, a Holder may rely on the number
of outstanding shares of Common Stock as reflected in (A) the
Borrower’s most recent periodic or annual report filed with
the Commission, as the case may be, (B) a more recent public
announcement by the Borrower or (C) a more recent written notice by
the Borrower or the Transfer Agent setting forth the number of
shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Borrower shall within two Trading Days
confirm orally and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Borrower,
including this Note, by the Holder or its Affiliates since the date
as of which such number of outstanding shares of Common Stock was
reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of
shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock issuable upon
conversion of this Note. The Holder, upon not less than 61
days’ prior notice to the Borrower, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 3.1,
provided that the Beneficial Ownership Limitation in no event
exceeds 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon conversion of this Note held by the
Holder and the provisions of this Section 3.1 shall continue to
apply. Any such increase or decrease will not be effective until
the 61st day after such notice is delivered to the Borrower. The
provisions of this paragraph shall be construed and implemented in
a manner otherwise than in strict conformity with the terms of this
Section 3.1 to correct this paragraph (or any portion hereof) which
may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such
limitation. The limitations contained in this paragraph shall apply
to a successor holder of this Note.
3.2
Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder hereof
in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.
All rights and remedies existing hereunder are cumulative to, and
not exclusive of, any rights or remedies otherwise
available.
-6-
3.3
Notices. Whenever
notice is required to be given under this Note, unless otherwise
provided herein, such notice shall be given in accordance with the
terms of the Purchase Agreement.
3.4
Amendment
Provision. The term “Note” and all reference
thereto, as used throughout this instrument, shall mean this
instrument as originally executed, or if later amended or
supplemented, then as so amended or supplemented. This Note may be
amended, modified or terminated only by a written instrument
executed by the Borrower, on the one hand, and the holders holding
a majority of the then outstanding aggregate principal amount of
the Notes issued pursuant to the Purchase Agreement, on the other
hand.
3.5
Assignability. This
Note shall be binding upon the Borrower and its successors and
assigns, and shall inure to the benefit of the Holder and its
successors and assigns. The Borrower may not assign its obligations
under this Note.
3.6
Cost of Collection.
If default is made in the payment of this Note, Borrower shall pay
the Holder hereof reasonable costs of collection, including
reasonable attorneys’ fees.
3.7
Governing Law.
This Note shall be governed by and
construed in accordance with the laws of the State of New York
without regard to
conflicts of
laws principles that would
result in the application of the substantive laws of another
jurisdiction. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement
must be brought only in the civil or state courts of New York or in
the federal courts located in the State and county of New York.
Both parties and the individual signing this Agreement on behalf of
the Borrower agree to submit to the jurisdiction of such courts.
The prevailing party shall be entitled to recover from the other
party its reasonable attorney’s fees and costs. In the event that any provision of this Note is
invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect
the validity or unenforceability of any other provision of this
Note. Nothing contained herein shall be deemed or operate to
preclude the Holder from bringing suit or taking other legal action
against the Borrower in any other jurisdiction to collect on the
Borrower’s obligations to Holder, to realize on any
collateral or any other security for such obligations, or to
enforce a judgment or other decision in favor of the Holder.
This Note shall be deemed an
unconditional obligation of Borrower for the payment of money and,
without limitation to any other remedies of Holder, may be enforced
against Borrower by summary proceeding pursuant to New York Civil
Procedure Law and Rules Section 3213 or any similar rule or statute
in the jurisdiction where enforcement is sought. For purposes of
such rule or statute, any other document or agreement to which
Holder and Borrower are parties or which Borrower delivered to
Holder, which may be convenient or necessary to determine
Holder’s rights hereunder or Borrower’s obligations to
Holder are deemed a part of this Note, whether or not such other
document or agreement was delivered together herewith or was
executed apart from this Note.
3.8
Non-Business
Days. Whenever any payment or
any action to be made shall be due on a Saturday, Sunday or a
public holiday under the laws of the State of New York, such
payment may be due or action shall be required on the next
succeeding business day.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Borrower has caused
this Senior Secured Convertible Promissory Note to be signed in its
name by an authorized officer as of the date first above
written.
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FLUOROPHARMA MEDICAL, INC.
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By:
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/s/
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Name:
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Thomas
H. Tulip
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Title:
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CEO
and President
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